Changes to the H-1B Visa Program

As a law firm specializing in business immigration since 1984, our firm has seen many changes to the H-1B visa program over the years. However, recent changes to H-1B adjudication standards have had an unprecedented effect, and the Trump administration is proposing additional changes that could fundamentally change the H-1B program. H-1B visas are one of the primary work visas used by employers wishing to hire highly skilled professionals and are reserved for positions that require at least a Bachelor’s degree in a specialty field. They are used in nearly every industry, from technology, engineering, and manufacturing to health care.

Actual and proposed changes in business immigration.

Most recently, we have seen the effects of the Buy American, Hire American Executive Order that was issued in April 2017. Under this order, the Department of Homeland Security (DHS) and its U.S. Citizenship and Immigration Services (USCIS) arm, as well as the U.S. Department of State, have embarked upon rulemaking, policy, and other operational changes that are impacting the H-1B program. These include:

for H-1B extensions, an end to deference granted to previously-approved H-1B petitions involving the same set of facts, including the same employer, employee, and job;

an increase in requests for evidence (RFEs) issued in H-1B cases, such as RFEs questioning whether the position requires a Bachelor’s degree in a specialty field, and RFEs questioning whether a position is truly an entry-level position, many of which conclude that certain occupational categories that previously were found eligible, such as computer systems analysts, generally do not qualify for H-1B visas; and

additional scrutiny of visa applications at U.S. Consulates, often resulting in significant delays.

DHS also announced a regulatory agenda for 2018 that includes several proposals that could impact the H-1B program. DHS plans to publish a proposed rule in February 2018 that would eliminate the issuance of work authorization (EADs) for certain H-4 spouses of H-1B workers. DHS also indicated that it intends to change the lottery system for allocating H-1B cap numbers, giving greater preference to the most highly paid and qualified workers; add a pre-registration requirement for the annual H-1B cap lottery program; and revise the definition of the “specialty occupation” and employer-employee relationship in the immigration context. There was also some reports that DHS was considering whether it could eliminate or make H-1B extensions beyond six years more difficult to obtain, even for individuals who are far along in the permanent residence (green card) process. Fortunately, however, it has been reported that the agency may have backed off on that idea.

In addition to these potential changes to the H-1B program, DHS has also signaled its intent to make other regulatory changes that could affect U.S. employers, including rescinding the international entrepreneur (start-up visa) rule and limiting work opportunities for foreign students through changes to the Optional Practical Training (OPT) program that allows foreign students to work in the U.S. for one year or more after graduation. We are particularly concerned by the possibility that DHS could rescind or reduce the “STEM extension” program under which graduates of U.S. universities in science, technology, engineering, and math fields may no longer be eligible for a 24 month extension of their OPT. Regulatory changes involve a process that ordinarily takes four months or more before a new rule becomes effective, so none of these proposals are immediate.

How employers can prepare for potential changes.

Given that changes to the H-1B program and other business immigration rules are likely in the coming months, we are encouraging our clients to consider being proactive and to update their hiring and immigration strategies in light of these existing and potential changes. Specifically, employers may wish to consider identifying employees who may be affected by these potential changes, including employees working pursuant to an H-4 EAD or OPT (particularly if they are currently in, or plan to apply for, a STEM OPT extension). It may also be advisable to apply for any available extensions of H-4 EADs and OPT status as soon as possible and to consider a back-up immigration strategy for these individuals at this time. Employers may also wish to consider filing H-1B cap petitions for these individuals in early 2018. In addition, employers may wish to take a close look at employees holding H-1B status (particularly those born in China or India) to determine whether a change in immigration strategy and/or timing of green card sponsorship is advisable. Employers should also consider being proactive in applying for H-1B extensions as early as regulations allow for employees working in periods beyond the standard six-year cap.

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Felicia Lani Gittleman is a partner in the law firm Cowan Miller & Lederman, P.S., in Seattle. Felicia’s practice is focused on developing immigration solutions, including obtaining visas and green cards for businesses that recruit from a global pool of talent. Felicia speaks frequently on business immigration issues at Continuing Legal Education seminars and to groups of human resource professionals. She has been a member of the Washington State Bar since 1986.